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September 06, 2016

Nearly half of all claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) address allegations of retaliation. Retaliation occurs when an employer takes a materially adverse employment action against an employee for engaging in protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) or any of the other federal anti-discrimination laws administered by the EEOC. Generally, protected activity consists of either filing an EEOC Charge of Discrimination or opposing unlawful employment actions.

The EEOC has now issued its final Enforcement Guidance on Retaliation to replace its 1998 Compliance Manual section on retaliation. In the 18 years since the 1998 guidelines, the U.S. Supreme Court has issued numerous rulings concerning retaliation claims. The new enforcement guidelines are intended to assist employers in addressing retaliation claims and avoiding liability.

Not surprisingly, the EEOC’s new guidelines take a broad and expansive view of what constitutes protected activity for purposes of triggering a retaliation claim. For instance, the EEOC states that “sometimes there is retaliation before any ‘protected activity’ occurs. For example, an employment policy that discourages the exercise of equal employment rights could itself be unlawful.” Other examples of protected activity listed in the guidelines include:

taking part in an internal or external investigation of employment discrimination, including harassment;

filing or being a witness in a charge, complaint or lawsuit alleging discrimination;

communicating with a supervisor or manager about employment discrimination, including harassment;

answering questions during an employer investigation of alleged harassment;

refusing to follow orders that would result in discrimination;

resisting sexual advances or intervening to protect others;

reporting an instance of harassment to a supervisor;

requesting accommodation of a disability or for a religious practice; or

In its guidelines, the EEOC stresses that the protections against retaliation apply not only to current employees (full-time, part-time, probationary, seasonal and temporary), but also to applicants and former employees. The guidelines also note that the protections apply regardless of an applicant or employee’s citizenship or work authorization status. The guidelines offer the following examples:

A supervisor cannot refuse to hire an applicant because of his EEOC complaint against a prior employer or give a false negative job reference to punish a former employee for making an EEOC complaint.

An employer suspects a worker is undocumented but does not attempt to verify her authorization to work as required by the immigration laws. If the worker raises an EEOC complaint, such as sexual harassment or national origin discrimination, and the employer then threatens to expose the worker’s immigration status as punishment for complaining about EEOC violations, the employer would violate the ban on retaliation.

The EEOC guidelines make it clear that an employee does not have to be terminated or demoted to have a viable retaliation claim, and much lesser employment actions can be enough to impose liability. The EEOC’s standard is that an employer is not allowed to do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination. For example, depending on the facts of the particular case, it could be retaliation because of the employee’s protected activity for an employer to:

reprimand an employee or give a performance evaluation that is lower than it should be;

transfer the employee to a less desirable position;

engage in verbal or physical abuse;

threaten to make, or actually make, reports to authorities (such as reporting immigration status or contacting the police);

increase scrutiny;

spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or

take action that makes the person’s work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).

The EEOC guidelines acknowledge that engaging in protected activity does not shield an employee from discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. This point addresses a concern by employers that poorly performing employees, aware that they face discipline or termination, file a baseless EEOC charge or assert frivolous claims of discrimination as a form of “job insurance,” knowing that employers will then be worried that justifiable actions might be perceived as retaliatory. Examples of non-retaliatory and non-discriminatory reasons for discipline or termination include poor job performance or low productivity, or where the employee’s actions in opposing discrimination interfered with job performance or involved something illegal or disruptive to the workplace.

To avoid retaliation claims, the EEOC advises maintaining a written and easily understood anti-retaliation policy, combined with training. Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur.

The importance of documentation and review of employment actions is also stressed. The guidelines suggest that managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure they are justified and consistent with existing practice.